SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
6.3 Proceeds of Crime Recovery Civil Liability Arising from the Offence
order and any civil liability. The court has broad pow - ers to investigate and locate assets, which may be exercised from the early stages of proceedings. It may instruct the State Tax Administration Agency or the Office for the Recovery and Management of Assets to trace assets and income until full payment is made. Amounts recognised in the judgment bear interest from the date of the first-instance judgment at the statutory rate plus two percentage points. 6.4 Victim Compensation and Asset Recovery Returning Recovered Assets to the Victim Spanish law prioritises compensating the victim. Payments by the convicted person are applied first to compensation and only then to fines and costs. Similarly, confiscated assets go to the public treasury only after the victim has been compensated. This protection is strengthened by extending the com - pensation obligation beyond the convicted person. Other parties may also be liable, including: the com - pany where the offence was committed by a direc - tor or employee acting in the course of their duties; insurers, up to the policy limit; and third parties who benefited economically from the offence without par - ticipating in it (known as “participants for profit”), who are liable up to the amount they received. Rights Over Misappropriated Assets If the misappropriated asset can still be identified, the victim has a right to its return under Article 111 of the Criminal Code. This applies even if the asset is now held by a third party who acquired it lawfully and in good faith. That third party may then claim against the person who transferred the asset to them. Alter - natively, the victim may bring a civil action to recover the property under Article 348 of the Civil Code. If the original asset has been sold, reinvested or trans - formed, the victim may seek confiscation of the trans - formed assets, as explained in 6.3 Proceeds of Crime Recovery . Where assets are fungible or funds have been com - mingled in bank accounts, the original asset cannot be identified. In such cases, the victim’s remedy is compensation for the harm caused.
Civil liability is governed by Articles 109 to 122 of the Criminal Code and Articles 100 to 117 of the Criminal Procedure Act. It covers three elements: returning the property taken, compensating for the harm caused and paying damages for any losses resulting from the offence. For efficiency, the civil claim is usually brought togeth - er with the criminal case and decided in the same judgment. However, the injured party may choose to pursue compensation separately in the civil courts. The claim requires proof that the harm was caused by the offence. To protect the victim’s interests, the investigating judge may require the suspect to provide security or, failing that, freeze sufficient assets. This power arises as soon as there are reasonable grounds to suspect an offence has been committed (Articles 589 et seq of the Criminal Procedure Act). Confiscation Confiscation is ordered in the criminal judgment under Articles 127 et seq of the Criminal Code. It involves the forfeiture of the proceeds, assets, instruments and gains of the offence, including any transformed assets. If the original assets cannot be confiscated, the court may order the confiscation of other assets of equivalent value. The law also provides for: • extended confiscation of assets that are dispropor - tionate to a convicted person’s lawful income (for certain profit-driven offences); • confiscation without a conviction in specified cir - cumstances, such as when the defendant has fled or died; and • confiscation from third parties who acquired assets knowing of their illicit origin. Enforcement and Consequences of Non-Payment Once the judgment is final, it is enforced by the court that issued it. The court will require the convicted person to comply with the penalties, the confiscation
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